Time for breakfast at the 11th Circuit

In Alice in Wonderland, the White Queen chides Alice about her professed inability to believe unbelievable things, suggesting that it is just a matter of practice. Because of her own discipline in practicing this art, the Queen is able to assure Alice that “sometimes I’ve believed as many as six impossible things before breakfast.” Lawyers, of course, have to be skilled at making arguments even for implausible positions, but the reply brief filed in the GSU copyright infringement appeal last Monday would challenge even the White Queen’s gullibility.

In this brief the plaintiff publishers are attempting to respond to the arguments made in the last round of filings by Defendant Georgia State University and the “friends of the court” who argued on its behalf. This is essentially their last shot at convincing the judges that they should reverse the decision of the trial court that largely ruled in favor of fair use. Unfortunately for the publishers, it is not very convincing.

The core argument of this brief is one the publishers have been making, unsuccessfully, throughout the case — that the so-called “course pack” cases from two decades ago are absolutely dispositive in this case and render incorrect all of the fair use analysis done by Judge Evans in her comprehensive ruling at trial. Some of this argument is based on misdirection, wherein the publishers argue that the judge was treating digital formats differently from print. She did no such thing, of course; she distinguished the situation before her from the course pack cases because the facts were different.

The publisher do address the distinction more directly, however, when they argue that GSU’s non-profit status is (for obscure reasons) not relevant to the fair use analysis. Of course, the course pack cases explicitly rejected fair use precisely because the defendants were commercial entities who were selling the course packs to students. In the GSU case, on the other hand, the university is non-profit and the readings are made available at no charge. It is absurd to say that this difference doesn’t matter. In fact, at least one publisher I have dealt with granted gratis permission for an excerpt on e-reserves only after I assured them that no charge was made to students. So even publishers understood that this was a crucial fact in determining the appropriateness of unlicensed uses in academia, before their lawyers told them they had better deny it.

From this basic assertion that the matter was already settled by different courts back in the 90’s, the publishers proceed to explain that the trial court was wrong on every one of the four fair use factors. Much of the argument is very strange, twisting back on itself in an effort to obscure the clear and cogent path that Judge Evans used to arrive at her original ruling. Its overall effect, however, is to emphasize what a sensible, careful analysis that trial court opinion offers.

It is, perhaps, worth looking at some of the general statements made in the opening summary of the brief’s argument to find some clues about how this analysis went so badly wrong.

First, of course, is this assertion that fair use is not supposed to favor non-profit educational uses. We have heard this complaint many times over the long course of this cases, but here is last week’s version of it:

To sanction GSU’s practices under the rubric of fair use on the grounds urged by Appellees — GSU’s non-profit status and the importance of Appellants’ work as teaching tools — would undermine fundamental tenets of copyright law by effectively dedicating the works of scholarly publishers to the public domain. (emphasis added)

This is truly a staggering bit of argumentation. First, a non-profit purpose is specifically mentioned as favoring fair use in the text of section 107 itself, so it is hard to see how it could NOT be an appropriate part of a fair use argument. And a quick look at all of the exemplary purposes for fair use that are also mentioned in section 107 should convince any unbiased reader that social utility — the importance of education, for example — is the fundamental purpose for which fair use was created. Indeed, courts have told us this over and over. So the rubric suggested as inadequate is, in fact, a nice, concise statement of why the original ruling in this case was correct. And then, the grotesque hyperbole that follows illustrates for us that the lawyers writing this brief know how far out on a limb they have climbed. To say that a fair use finding effectively dedicates a work to the public domain is simply absurd. I do not think the publishers could cite a single instance where fair use has had that effect, where the original became unmarketable because someone made a fair use of a portion of that work. When movie companies challenged the video recorder, for example, by saying that it would destroy the movie industry, they were making a parallel, and equally silly, claim; home video recorders, of course, did not harm the market for movies at all, even though entire films could be recorded under the Supreme Courts ruling on fair use.

And of course, we should not ignore that phrase “the works of scholarly publishers.” Throughout this brief the publishers are not sure whether they are arguing for their own profits or on behalf of authors. Sometime they throw the authors in to their argument, but mostly they want the court to believe that they, the publishers, actually created the works in question ex nihilo. But none of these works were created by publishers, and their argument collapses when we realize that the fees they are seeking have virtually no role at all in incentivizing scholarly creation, which is what copyright is for. More about this in a minute.

But before we leave fair use proper, we should also examine this gem: “Fair use … imposes on the proponent of fair use the burden of demonstrating the limited nature of the unauthorized use …” There is no such requirement in the text of the law, of course, and the Sony case about VCRs illustrates, at the highest level of U.S. legal precedent, that simply because a practice is widespread does not prevent it from being a fair use.

To return to the issue of incentives, let’s look at one more passage from the preliminary statement in this brief:

This blatant end-run of copyright law not only threatens to undermine the established legal norms that have long governed course-pack copying, but it comes at a time when Appellants and other academic publishers are investing heavily in publishing and delivering content in digital form. These publishers cannot hope to recoup their investment if institutions like GSU are permitted to make exact digital copies of their works … without compensation to the works’ authors and publishers.

The first part of this quote is, as we have already seen, irrelevant; a fair use ruling in the GSU case would not alter the precedent created by the course pack cases, when those cases are properly understood. But the second part is also interesting, and it echos an earlier statement, quoted from one of those course pack cases, about how publishers have “risked their capital to achieve dissemination.” By way of reply, we should note first that dissemination is quite different now than it was nearly twenty years ago when that case was decided. Many Gold OA journals and other forms of digital writing can be distributed with much less expense than these traditional publishing houses claim is required. So we are entitled to ask if it is being done efficiently by them; whether that capital the Court is asked to protect is being invested wisely. And in any case, copyright law is not designed to support any particular business model, but to give creators more reason to create.

Given these statements, the Appeals Court would be justified, I think, in asking the plaintiffs to open the books and show how much investment is being made, how it is being spent, and how dependent that investment really is on permission fees. The trial judge did not think those fees mattered all that much to publisher revenue. If the plaintiffs continue to assert that their business will be ruined by fair use, they should be obligated to prove it, and also to show that the threat is systemic and not just the result of poor management.

Finally, it is worth noting that authors have now appeared in the argument. Whereas earlier the issue was “the works of scholarly publishers,” now, in classical fashion, the authors have been belatedly recalled and tossed in to the mix. Publishers have made pathos-filled appeals on behalf of starving authors in order to justify their own businesses since copyright began. But academic authors are different, so this reflexive reference to authors should not go unchallenged. In response to this argument, there are two questions the Court of Appeals should examine closely. First, how much money actually makes its way into the hands of authors, rather than the publishers, from permission fees paid to the Copyright Clearance Center? Second, what role, if any, do these fees play in creating the incentive that academic authors have to create scholarly monographs, recognizing that all of the books in question in this lawsuit are such monographs, rather than textbooks. These questions are perfectly within the competence of the Court of Appeals, both because they are relevant to the second fair use factor and because the publishers’ reply brief has put them at issue.

Th Eleventh Circuit Court of Appeals is asked to swallow lots of unbelievable things in this reply brief. Now is the time for them to sit down at the metaphorical breakfast table (harkening back to the White Queen) and demand substantive information from the plaintiffs before they finish this meal.

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Policy on Electronic Course Content

For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.

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About Kevin Smith

As Director of the Office of Copyright and Scholarly Communication at Duke University, Kevin Smith’s principal role is to teach and advise faculty, administrators and students about copyright, intellectual property licensing and scholarly publishing. More...